The Commander in Chief Clause

The President shall be Commander in Chief of the Army and Navy of the United States. . . .

—John C. Yoo

Introduction

The Commander in Chief Clause assures civilian control of the military, which is an important principle for republican government. The clause forbids the creation of any federal military force that is beyond the President’s control and prohibits subordinate officers or other branches, such as Congress, from interfering with his authority.¹ It also provides the chief source of textual authority for presidential claims involving military tactics and strategy in war and a right to initiate hostilities abroad. As commander in chief, the President has authority over the deployment and operations of the military in peacetime and over the conduct of military strategy, tactics, and objectives once war has begun.²

History Before 1787

The British constitution recognized a traditional division of authority between the executive and legislative powers.³ The Crown held the role of commander in chief and directed all military affairs. Sir William Blackstone described the king as the “generalissimo, or the first in military command, within the kingdom.”⁴ English seventeenth- and eighteenth-century constitutional history told the story of Parliament’s effort to tame the king’s authority over war and peace through the power of the purse. John Locke also maintained that the executive naturally possessed a “federative power” that contained “the power of war and peace” as well as foreign affairs powers, including authority over “leagues and alliances, and all the transactions with all persons and communities without the commonwealth.”⁵ Locke contended that these foreign affairs powers and the executive power as commander of the military were “really distinct in themselves” but were usually combined in the same branch.⁶ The discretionary powers of war and foreign affairs naturally fell to the executive because they required prompt, decisive action and adaptability that could not be anticipated by predetermined laws.

During the Revolutionary War, American forces suffered from a committee structure in the Continental Congress that oversaw George Washington’s role as the “General and Commander in Chief” of the Continental Army.⁷ Washington exercised control over strategy, operations, and military tactics, but Congress regularly advised on matters of strategy and control of resources. Washington’s appointment specified that he would “observe and follow such orders and directions, from time to time, as you shall receive from this or a future Congress.”⁸ This awkward command structure failed to keep the Revolutionary Army adequately paid or supplied and led to confusion on matters of broader strategy.⁹ Congress also could not maintain a unified position because of constant changes in committee composition and policy.¹⁰

In their Revolutionary constitutions, states continued to recognize executive authority over war. The Pennsylvania constitution of 1776 declared that the president of the supreme executive council “shall be commander in chief of the forces of the state, but shall not command in person.”¹¹ The 1776 Virginia constitution specified that “[the] Governor may embody the militia, with the advice of the Privy Council; and when embodied, shall alone have the direction of the militia, under the laws of the country.”¹²

Later in the Revolutionary period, state constitutions were even more explicit in their recognition of executive control over war. The 1779 New York constitution, which became an important model for the federal Constitution, vested in the governor “the supreme executive power and authority of this State” and declared him to be “general and commander-in-chief of all the militia, and admiral of the navy of this State.”¹³ The Massachusetts constitution of 1780, another model for the Constitutional Convention, declared that “the president of this state for the time being, shall be commander in chief of the army and navy, and all the military forces of the state, by sea and land; and shall have full power by himself. . . .”¹⁴

States such as Georgia, New Jersey, Delaware, and Maryland generally followed the New York model. To the extent that the Revolutionary states reacted against the British constitution, they did not limit the substantive commander-in-chief power vested in the executive but instead sought to disrupt the unity of the executive branch by creating advisory councils or prohibiting standing armies.

Even as the Revolutionary War came to a close, the Articles of Confederation, ratified in 1781, maintained the traditional vesting of war powers in the executive. Article IX provided that the legislature could appoint a “commander in chief of the army or navy” with the “assent” of nine states.¹⁵ Congress also had the power to declare war and make treaties.¹⁶ Commentators sometimes conclude that vesting Congress with these powers signaled a desire to turn the war power into a legislative function. In fact, the unicameral Congress under the Articles of Confederation assumed the executive powers of the nation upon independence; its great handicap was its lack of effective legislative powers.¹⁷

The Constitutional Convention

During the Constitutional Convention, there was very little discussion of the President’s role as commander in chief of the Army and Navy. The Framers were far more concerned about the President’s power as commander in chief of the militia. (See Essay No. 103.) Several drafts from the Committee of Detail framed the commander-in-chief power with different language. One draft provided that the president’s “powers shall be . . . to (command and superintend the militia,) (to be Commander in Chief of the Land & Naval Forces of the Union & of the Militia of the sevl. states).”¹⁸ A second provided that the President “shall, by Virtue of his Office, be Commander in chief of the Land Forces of U. S. and Admiral of their Navy.”¹⁹ A third stated that “He shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the Several States.”²⁰

The report delivered to the Convention on August 6 followed the third model.²¹ The Framers took inspiration from state constitutions that gave their governors control of the state military.²² This text was approved without any debate on August 27.²³ The Committee of Style changed “He” to “President.”²⁴ No further revisions were made.

The Ratification Debates

During the ratification debates, supporters and opponents of the Constitution offered very different characterizations of the Commander in Chief Clause. The Federalists downplayed the President’s powers to minimize the risk of tyranny, and the Anti-Federalists exaggerated the President’s powers to maximize the risk of tyranny.

In Federalist No. 69, Alexander Hamilton observed that in many “particulars, the power of the president will resemble equally that of the king of Great Britain. . . .” However, he observed, one “material point[] of difference” was the Commander in Chief Clause. Hamilton wrote that the President’s authority over the army and navy “would be nominally the same with that of the king of Great Britain, but in substance much inferior to it.” The President’s power “would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral” under the Articles of Confederation. Hamilton seemed to view the President’s power as commander in chief as comparable to the powers that General Washington exercised under the Articles of Confederation.

In Federalist No. 74, Hamilton returned to the Commander in Chief Clause. He explained that the “propriety” of the President’s power over the army, navy, and militia is “so evident” and “so consonant to the precedents of the state constitutions in general, that little need be said to explain or enforce it.” These states had “concentrated the military authority” in the governor’s “single hand.” Hamilton concluded that “[t]he direction of war, implies the direction of the common strength: and the power of directing and employing the common strength, forms an usual and essential part in the definition of the executive authority.” Hamilton understood that success in the conduct of war demands the unique presidential qualities of unity, decisiveness, speed, secrecy, and energy.²⁵

Hamilton added in Federalist No. 72 that the “administration of government” falls “peculiarly within the province of the executive department.” That power includes the conduct of foreign affairs, preparation of the budget, expenditure of appropriated funds, and direction of the military and “the operations of war.”²⁶

Anti-Federalists feared that the President might abuse his command of the military to impose a dictatorship. Cato warned that the President’s powers over war were “substantially the same” as the king’s. He referred to the President as “the generalissimo of the nation” who “of course, has the command and controul of the army, navy and militia.”²⁷ An Old Whig proclaimed that the President’s power as “commander in chief of the army, navy and militia” was “dangerous.”²⁸ He predicted that the President will be “unwilling to part with” his “eminent powers.” An Old Whig alluded to a “future President and commander in chief adored by his army and the militia to as great a degree as our late illustrious commander in chief,” who “struggles to resign.” Not everyone would have the virtue of George Washington to resign. Philadelphiensis said that the President was for “all intents and purposes” a king as “commander in chief of a standing army.”²⁹

Federalists responded that the constitutional structure would check the commander-in-chief power.³⁰ Drawing on their understanding of British constitutional history, Federalists argued that Congress could use its sole control of the raising and funding of the military to control presidential power. In the Virginia ratification convention, Anti-Federalist Patrick Henry claimed that the Constitution set up the President as a potential military dictator: “If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute!”³¹ Henry asked: “Can he not, at the head of his army, beat down every opposition?”

Federalist George Nicholas responded that the division of the war power between Congress and the President would prevent Henry’s predictions of doom from being realized. Citing the Appropriations Clause, he explained that “no appropriation of money, to the use of raising or supporting an army, shall be for a longer term than two years.”³² Nicholas acknowledged that “[t]he President is to command” as commander in chief but added that under the Constitution, “the regulation of the army and navy is given to Congress.” Virginia’s “representatives [in Congress] will be a powerful check here.” Nicholas referred to the separation of powers in Great Britain. “The influence of the [House of] commons,” he said, “is very predominant.”

James Madison saw the same influence. Immediately after Nicholas spoke, Madison declared that “[t]he sword is in the hands of the British king; the purse in the hands of the Parliament” and argued that “[i]t is so in America, as far as any analogy can exist.”³³ Parliament’s long struggle with the Crown to subject the military to the power of the purse established a structure that also would govern the tension between the commander in chief and Congress in the New World.

Judicial Precedent

Traditionally, the U.S. Supreme Court has treated decisions made by the President as commander in chief with great deference. The Prize Cases (1862), for example, declined to review President Abraham Lincoln’s actions during the Civil War.³⁴

However, a series of cases decided during the war on terrorism afforded the President less deference. Hamdi v. Rumsfeld (2004) concluded that a U.S. citizen held as an “enemy combatant” at a naval base in Guantanamo Bay, Cuba, could seek judicial review through the writ of habeas corpus.³⁵ Hamdan v. Rumsfeld (2006) found that the President’s unilateral creation of military commissions violated the Uniform Code of Military Justice enacted by Congress.³⁶ Such specialized war crimes tribunals had been used in most major American wars. And Boumediene v. Bush (2008) held that non-citizen detainees held at a naval facility in Guantanamo Bay, Cuba could seek judicial review through the writ of habeas corpus.³⁷ In each case, strong dissents argued that the Court was interfering with the President’s traditional commander-in-chief power.³⁸

The Commander in Chief and Declare War Clauses

The Constitution designates the President as commander in chief but grants Congress the power to declare war. The relationship between the Commander in Chief Clause and the Declare War Clause has been the subject of several long-simmering constitutional debates. Three of these questions are discussed in Essay No. 45 on the Declare War Clause. First, does the Commander in Chief Clause permit the President to initiate war without Congress’s approval? Some scholars contend that the Declare War Clause gives the power to initiate war exclusively to Congress; others contend that the President can launch hostilities subject to Congress’s funding and raising of the military. Second, does the Commander in Chief Clause give the President power to respond to attacks on the United States? Almost all scholars contend that it does. Third, does the Commander in Chief Clause grant the President the authority to engage in foreign military action of limited nature, scope, and duration absent congressional approval? Executive branch officials have argued that it does.

Congressional Control of the Military

The Constitution squarely grants Congress the power to appropriate money for the military,³⁹ and the legislature has no constitutional obligation to provide the weapons that the President wants. But can Congress, through its power of the purse, direct the way that the President controls the military? During the war on terrorism and the conflict in Iraq, Congress considered enacting restrictions on appropriations directing the President to take or refrain from taking specific actions.⁴⁰

Some scholars contend that Congress’s various powers over war and the military allow a full range of control akin to its authority over domestic policy. Under this view, the President’s commander-in-chief authority is residual and can be exercised only where Congress has not provided any specific statutory direction.⁴¹ Other scholars believe the Commander in Chief Clause affords the President plenary power, which Congress lacks the power to regulate.⁴² A third view holds that Congress has authority to restrict and direct the commander-in-chief authority in certain areas but not in others.⁴³

1. John Yoo, Administration of War, 58 Duke L.J. 2277 (2009). ↩︎
2. Saikrishna Bangalore Prakash, Imperial from the Beginning: The Constitution of the Original Executive 154 (2015). ↩︎
3. Andrew Kent, Ethan J. Leib, & Jed Handelsman Shugerman, Faithful Execution and Article II, 132 Harv. L. Rev. 2111, 2158–59 (2019) (citing 1 Blackstone 262); Jack DiSorbo, On Executive Orders and the Royal Prerogative, 26 Tex. Rev. L. & Pol. 555, 563–76 (2022). ↩︎
4. 1 Blackstone 262. ↩︎
5. John Locke, The Second Treatise of Government § 146 (J.W. Gough ed., 3d ed. 1966). ↩︎
6. Id. § 147. ↩︎
7. 3 Farrand’s 94. ↩︎
8. 2 J. Cont. Cong. 96 (June 7, 1775). ↩︎
9. E. Wayne Carp, To Starve the Army at Pleasure: Continental Army Administration and American Political Culture, 1775–1783, at 18–24 (1984). ↩︎
10. John Ferling, Almost a Miracle: The American Victory in the War of Independence 114–18 (2007). ↩︎
11. Pa. Const. of 1776, ch. II, § 20. ↩︎
12. Va. Const. of 1777, ¶ 34. ↩︎
13. N.Y. Const. of 1779, §§ XVII, XVIII. ↩︎
14. Mass. Const. of 1780, pt. 2, cl. 2, § 1, art. VII. ↩︎
15. Articles of Confederation, art. IX, § 6. ↩︎
16. Id. art. IX, § 1. ↩︎
17. John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167, 238 (1996). ↩︎
18. 2 Farrand’s 137, 145. ↩︎
19. Id. at 157, 158. ↩︎
20. Id. at 163, 172. ↩︎
21. Id. at 177, 185. ↩︎
22. Yoo, The Continuation of Politics, supra at 252–54; N.J. Const. of 1776, art. VIII; Va. Const. of 1776, art. XIII. ↩︎
23. 2 Farrand’s 422. ↩︎
24. Id. at 577, 599. ↩︎
25. Yoo, The Continuation of Politics, supra at 304. ↩︎
26. Id. ↩︎
27. Storing 2.6.31. ↩︎
28. Storing 3.3.31. ↩︎
29. Id. at 3.9.97. ↩︎
30. Yoo, The Continuation of Politics, supra at 252, 278. ↩︎
31. 3 Elliot’s 59. ↩︎
32. Id. at 391. ↩︎
33. Id. at 393. ↩︎
34. 67 U.S. 635, 670 (1862). ↩︎
35. 542 U.S. 507 (2004). ↩︎
36. 548 U.S. 557 (2006). ↩︎
37. 553 U.S. 723 (2008). ↩︎
38. Hamdi, 542 U.S. at 579 (Thomas, J., dissenting); Hamdan, 548 U.S. at 678 (Thomas, J., dissenting); Boumediene, 553 U.S. at 826 (Scalia, J., dissenting). ↩︎
39. Art. I, § 8, cl. 12. ↩︎
40. H.R. 1591, 110th Cong. (2007). ↩︎
41. Saikrishna Bangalore Prakash, The Separation and Overlap of War and Military Powers, 87 Tex. L. Rev. 299, 299 (2008); David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A Constitutional History, 121 Harv. L. Rev. 941, 1101–06 (2008). ↩︎
42. John C. Yoo, War and the Constitutional Text, 69 U. Chi. L. Rev. 1639, 1654 (2002). ↩︎
43. Michael D. Ramsey, Response: Directing Military Operations, 87 Tex. L. Rev. 29 (2009). ↩︎